Last Updated on April 28, 2019 by LawEuro
Communicated on 26 March 2019
THIRD SECTION
Application no. 70923/17
M.W.
against Serbia
lodged on 29 September 2017
STATEMENT OF FACTS
1. The applicant, Mr M.W., is an unaccompanied minor from Afghanistan. He is represented before the Court by the Belgrade Centre for Human Rights, a non-governmental organisation based in Belgrade.
2. The applicant left his home country in mid-2015 as his father and he had allegedly received constant threats from the Taliban that the whole family would be killed because of his brother’s employment at the NATO forces in Afghanistan as interpreter. He transited though Iran (12 days), Turkey (2 months) and Bulgaria (3 months), allegedly with the help of smugglers. He escaped from the smugglers and was subsequently arrested by Bulgarian police and was kept in custody in Sofia for 12 days. He was then taken to camp Voenna rampa, where he was allegedly mistreated. He was not appointed a legal guardian nor had access to a lawyer.
3. The applicant’s first attempt to enter Serbia failed as the group he was travelling with were intercepted by the Serbian Army and were allegedly collectively expelled to Bulgaria. The second attempt was stopped by Bulgarian police who allegedly mistreated him and returned him to the camp Voenna rampa, where he was mistreated on several occasions. His third covert attempt to enter Serbia in September 2016 was successful. The applicant was issued with a certificate acknowledging his intention to seek asylum and was appointed with D.K. as his temporary legal guardian in November 2016. The applicant stayed at the Krnjača Asylum Centre until February 2017. He alleges that he did not have access to a lawyer and asylum as the Office for Asylum did not arrange for an asylum request to be submitted.
4. In February 2017 he left camp Krnjača Asylum Centre and crossed into Hungary. He was arrested there and taken to camp in place Bekescsaba where he stayed for 3 months. He was then deported to Bulgaria and was again placed at camp Voenna rampa, where he allegedly witnessed further acts of violence against other minors.
5. Upon covertly crossing into Serbia in June 2017, the applicant again submitted a request for asylum with the help of his legal guardian and a lawyer of the Belgrade Centre for Human Rights. On the same day, the Aliens Department of the Belgrade Police denied the applicant’s access to asylum proceedings, cancelled his temporary residence permit, ordered him to leave Serbia voluntarily within seven days and barred him from entering or residing in Serbian territory until June 2018. The decision does not specify the country to which the applicant would be deported if he failed to leave Serbia voluntarily. It appears that in practice deportation orders do not indicate the country of destination.
6. The applicant appealed against that decision in July 2017. His lawyer asked, in October 2017, for the proceedings to be accelerated in view of the applicant’s age and living conditions and further complained to the Ombudsperson about the unlawful and inappropriate acting by the Ministry. In the meantime, in September 2017 the Border Police Department (Uprava granične policije) of the Ministry of Internal Affairs rejected the applicant’s appeal. The Ministry explained that the applicant, an unaccompanied minor from Afghanistan who had previously applied for asylum in Serbia, does not have travel documents or means of subsistence. It indicated that since the applicant previously left the Krnjača Asylum centre, failed to apply for asylum for several months and crossed into Hungary, he lacked genuine will to apply for asylum, and moreover that such actions was indicative of his misuse of the asylum procedure. The applicant’s request for judicial review before the Administrative Court against the decision of the Ministry of Internal Affairs is still pending.
7. It would appear that in August 2017, the misdemeanour court judge in Sombor found the applicant committed a misdemeanour of an attempt to cross the Serbian border irregularly and in breach of Article 65 (1) (1) and imposed upon him the sanction in the form of reprimand (caution; vaspitna mera ukora). On the same day, the local police unit cancelled the applicant’s residence and ordered him to voluntarily leave Serbia. None of these two proceedings appear to have been conducted in presence of the applicant’s legal guardian or a lawyer, nor were the decisions served on them.
8. In January 2018, the applicant’s lawyer informed the Court that the applicant left the territory of Serbia, due to the alleged inefficiency of the asylum procedure and the inadequate reception conditions, but that he would like to maintain the application. In the view of this information, on 29 January 2018 the Court (the duty Judge) decided to lift the previously indicated interim measure of October 20017 that the applicant should not be deported to the FYROM or another country for the duration of the proceedings before the Court.
COMPLAINTS
The applicant complains under Article 13 of the Convention, taken in conjunction with Article 3, that he did not have at his disposal any effective domestic remedy in the course of deportation proceedings for his complaints under Article 3 of the Convention, as the proceedings do not comply with the required standards, do not offer required guarantees and do not have suspensive effects.
Relying on Article 6 of the Convention, the applicant complains about the fairness of the misdemeanour proceedings against him, because: (a) the proceedings were initiated and terminated on the same day in which he allegedly committed the misdemeanour; (b) the proceedings were conducted without the applicant’s legal guardian or lawyer being present, informed or consulted about them; and (c) that the decision was not served on them.
QUESTIONS TO THE PARTIES
1. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention (see I.M. v. France, no. 9152/09, §§ 99-103 and 132-134, 2 February 2012)? In this connection, the parties are requested to comment on:
(a) did the Serbian authorities examine the applicant’s allegations that he would be exposed to a real risk of being subjected to torture and inhuman treatment if returned to Bulgaria or to Afghanistan, before deciding on his deportation?
(b) can a judicial review or constitutional appeal be considered an effective domestic remedy, in view of the fact that it does not have automatic suspensive effect when lodges by an alien (see Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002‑I; I.M. v. France, no. 9152/09, §§ 99-103, 2 February 2012; Gebremedhin [Gaberamadhien] v. France, no. 25389/05 , § 58, ECHR 2007‑II; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012) and M.A. and Others v. Lithuania, no. 59793/17, 11 December 2018)?
(c) how is the procedure for the abuse (zloupotreba) of the asylum procedure regulated in Serbia? In particular,
(i) is an individual entitled to express his intention to seek asylum more than once according to the Serbian legislation and practice of the competent authorities?
(ii) which authority in Serbia is vested with the jurisdiction to decide on whether an asylum request constitutes an abuse of the right to seek asylum?
(iii) what safeguards are in place to ensure that expressed intentions to seek asylum or asylum requests submitted to the Serbian police are properly registered and transferred to competent authorities for examination?
The parties are invited to submit the copies of relevant domestic law and practice in respect of their comments.
2. Was Article 6 § 1 of the Convention under its criminal head applicable to the misdemeanour proceedings in the present case?
3. Has the applicant exhausted properly all effective domestic remedies in respect of his complaints under Article 6 § 1 of the Convention, as required by Article 35 § 1 of the Convention? In particular, was an appeal in misdemeanour proceedings available to the applicant in view of the circumstances of the case? The Government are requested to provide documentary evidence in support of their answers.
4. Did the applicant have a fair hearing in the determination of his criminal charge in the course of the misdemeanour proceedings, in accordance with Article 6 § 1 of the Convention? In particular, the Government are invited to provide the comments and to submit the relevant case-law or administrative practices, as relevant, on the following:
(a) does the same legal regime apply to asylum-seeking children and adults?
(b) did the competent court treat the applicant as minor or as an adult?
(c) did the competent court take into consideration the best interests of the unaccompanied minor applicant, and if so, in which way?
(d) was there an interpreter, lawyer or appointed legal guardian present during the misdemeanour proceedings against the applicant?
(e) was the decision of the misdemeanour court served on the applicant or his lawyer, if any?
5. The Government are lastly invited to clarify and document which of the two orders cancelling the applicant’s residence in Serbia is valid (see paragraphs 13 and 19 of the attached confidential version of the Statement of facts).
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